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  • David Foreman

Goldilocks and the Three Barristers - Part Two


A good place to start for an analysis of trespasser v. licensee status is Ott v. Unclaimed Freight, 577 A.2d 894 (Pa. 1990). The plaintiff slipped on ice while walking across a parking lot she used as a shortcut. The Supreme Court affirmed summary judgment in favor of the owner. The Court declined to determine whether Ott was a trespasser or a licensee, determining that she was owed no duty by the possessor regardless of her status.

A licensee is a person who may enter or remain on the property only by virtue of the consent of the possessor of that property. Restatement (Second) of Torts § 330. Cresswell v. End, supra.; Updyke v. BP Oil Company, supra, at 549. A "gratuitous licensee" is one who enters on the land of another solely for the licensee's own purpose. The possessor has no interest, either business or social, in his/her entry. Sharp v. Luksa, 440 Pa. 125, 269 A.2d 659 (1970). Even if the licensee performs some minor service for his host during a stay, that does not change him into an invitee or business visitor. Id.

A middle level standard of care applies to licensees, less than what is owed to invitees but more than for trespassers. The Restatement (Second) of Torts § 342 provides:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and (b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and (c) the licensees do not know or have reason to know of the condition and the risk involved.

Rossino, et. al., v. R.C. Titler Construction Inc., et. al., supra, at 757; Ott v. Unclaimed Freight, supra; Cresswell v. End, supra, at 675. Thus, hidden dangers subject the possessor to liability, but open dangers do not.

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